ALLCITY INSURANCE COMPANY v. Hanover Insurance Company, Defendant-Respondent. (2005)

Judgment (denominated an order), Supreme Court, Bronx County (Dianne T. Renwick, J.), entered January 6, 2005, which denied plaintiff's motion for summary judgment and granted defendant-respondent's cross motion for summary judgment dismissing the amended complaint and awarding defendant-respondent judgment on its counterclaim, unanimously modified, on the law, to declare in defendant-respondent's favor that it had no duty to defend or indemnify the New York City Transit Authority, and otherwise affirmed, with costs in favor of defendant-respondent payable by plaintiff.

Defendant-respondent did not provide coverage to the Transit Authority, the certificate of insurance notwithstanding (see Insurance Corp. of N.Y. v. U.S. Underwriters Ins. Co., 11 A.D.3d 235, 782 N.Y.S.2d 432 [2004] ), and its denial of control over or involvement in the third-party action commenced by the Transit Authority against its insured was unrebutted.   Thus, there was no possibility it would be subrogated to its own insured (cf. National Union Fire Ins. Co. v. State Ins. Fund, 213 A.D.2d 164, 166, 623 N.Y.S.2d 558 [1995];  National Cas. Co. v. State Ins. Fund, 227 A.D.2d 115, 117, 641 N.Y.S.2d 665 [1996], lv. denied 88 N.Y.2d 813, 649 N.Y.S.2d 380, 672 N.E.2d 606 [1996] ).

We modify solely to declare in defendant-respondent's favor (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 [1962], cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164 [1962] ).